The Rule of Men

There is now a vast distance between the actions carried out by the United States government and the often ridiculous rhetoric spewed forth by its leaders to describe and justify these actions, and which is spoon-fed to the citizenry like so much pablum by a largely ignorant and subservient corporate press.  Call it a "reality gap."  There is, on the one hand, the real world of causes and effects that is readily evident to those who are more often than not on the receiving end of the actions of our government, and then there are the hollow, dissembling, ludicrous, deceitful, false "official pronouncements" from US government leaders and their spokes-people.  While it is true that such a dynamic is not new, the scale of the "gap" is at epic proportions, and perhaps accounts for a measure of the contempt with which US government officials are generally viewed by their own citizens these days.  As one gauge of this contempt consider these abysmal approval ratings!  Trust begins with the truth.

A major myth around which such rhetorical deceit orbits is the notion of the rule of law.   It goes something like this, the United States is the exemplar of a nation in which the rule of law operates.  It is the governments and systems of official enemies that are corrupt and problematic, and they should look to the US to see how it should be done. Indeed, this is one of the foundational myths of "American Exceptionalism," and is virtually axiomatic amongst officials at the higher levels of government and the corporate press as well.  The reality, when judged by deeds rather than words is, however, very different from such official myths.  Consider the recent example of Director of National Intelligence (try to suppress the oymoronic giggles) James Clapper's less than honest testimony before Congress. If Attorney General Eric Holder and indeed President Obama held even an inkling of a notion that the rule of law was vital to the proper functioning of a democracy, were truly committed to a fair and equitable enforcement of the law, and had any intention to actually honor their oaths to defend the Constitution and see that the laws are faithfully executed, then the Department of Justice would right now be investigating, and probably should already have indicted, Mr. Clapper for perjury before the United States Congress.  The evidence against Clapper is not only substantial (indeed, overwhelming), and public, but he has virtually admitted to it publicly as well.  Such perjury is a felony offense, and arguably should be since it strikes at the very heart of real democracy, as it is not possible for the people to know what their government is doing, and hence grant the consent of the governed, if its officials routinely lie to their elected representatives.

Not only does Clapper apparently not face any criminal prosecution, he has remarkably been allowed to "apologize" in written statements to Congressional officials, and seemingly is still strongly supported by his ultimate boss, President Obama.  Moreover, this story of evident perjury by a high national security official has gotten remarkably little press scrutiny.  Rather, our free, "adversarial" press appears much more interested in the whereabouts of courageous whistleblower Edward Snowden, or whether a conscientious, independent journalist like Glenn Greenwald should be investigated for "aiding and abetting" Snowden.  This latter charge is so preposterous, so ludicrous, that for the question to even be posed to Greenwald by a mainstream journalist does much to reveal the sorry state of the corporate US press.   If you haven't seen it, this video of "media star" David Gregory's accusatory questioning and Glenn Greenwald's devastating tear-down of Gregory reveals just about all you need to know about the current state of US journalism, and is well worth a look.

Contrast the treatment afforded "power-broker" Clapper to that served up to anyone of lowlier station who actually attempts to honor their oath to the Constitution and attempts to shine some light on administration wrong-doing and corruption.  Edward Snowden has virtually been tried and sentenced in the media, with senior Congressional officials calling him, ridiculously, a traitor, and his courageous whistle-blowing treason.  In further contempt for the rule of law, his asylum rights under international law have been severely curtailed by the United States and his passport was summarily revoked.  In an even more egregious display of lawlessness the lone superpower and "rule of law exemplar" conspired with its allies to have the plane of Bolivian President Evo Morales diverted and forced to land in Austria under the incorrect suspicion that Snowden was onboard.  Apparently, this was yet another "triumph" of US espionage.   I ask you to consider the response of the United States, the howls that would erupt from both government officials and their fawning press lackeys, if Air Force One were refused entry to some ostensibly friendly nation's airspace and required to land before proceeding onward.  It would be treated as nothing less than an act of war!  The shrieks of protest would be unrelenting.  But when the United States organizes nothing less than the air piracy of another nation's president, well, that's just fine and proper.  The double standard and imperial hubris is simply breathtaking!  But this is standard fare for American Exceptionalism.  Richard Nixon was famously chastised for arguing that, "if the President does it, then it's legal," however, this is one of the guiding premises of US officials on the world stage, if the United States does it, then, it has to be legal, by definition. 

An interesting, related behavior from US government officials is their categorical insistence that Snowden is not a dissident, or a political refugee, and that he thus has no valid asylum claims.  No specifics are discussed, no evidence given to support such vacuous assertions. But that's the beauty, none are required, you see, the United States is simply the best, at everything, and the moral leader amongst nations, so, again, by definition, there cannot be dissidents in the United States.  Most US officials internalize such attitudes, and so, they can repeat such absurdities without even batting an eye.  In the real world however, one need only consider the horrendous persecution and treatment of Private Bradley Manning to know that Snowden has extremely valid political asylum claims.

Extraordinary Injustice

It is likely that most Americans still do not recognize the name of Maher Arar. Based on yesterday's decision by a majority of judicial, boot-licking bureaucrats of the United States Court of Appeals for the Second Circuit--to call them judges immeasurably degrades the term--it is likely that few more will recognize it. This infamous decision in the Arar saga does much to illustrate the depths to which justice and the rule of law have sunk within the United States. Mr. Arar is a Canadian citizen who in September 2002 while en-route to Canada through the US was kidnapped--no other term adequately describes his plight--by agents of the United States government on the flimsiest of evidence and "rendered" to Syria where he was detained for a year and brutally tortured. As in Orwell's "1984," words themselves are abused, thus "war is peace," and in a similar vein, kidnapping becomes "rendering." Released after a year in Syrian detention Arar was neither charged with a crime nor offered any explanation or apology for what effectively was the ruining of his life. Read more about the details of his treatment in Glenn Greenwald's column here.

A subsequent investigation by the Canadian government confirmed that Arar was completely innocent and resulted in it accepting its share of blame in providing the US government with erroneous intelligence on Arar, although it maintained that Canadian officials did not improperly acquiesce in his abduction. He was offered a formal apology by the Canadian government and received a cash settlement to provide some redress for the treatment he received and the violation of his rights. Since then Arar has sought redress in the US courts in an attempt to bring some accountability to the individuals and government responsible for his abduction and ordeal. His efforts have so far been in vain, with the most recent setback provided by the judicial rubber-stamp of the Second Circuit Court of Appeals. Indeed, in a despicable display of imperial arrogance the United States still refuses Arar entry into the country, and he was even forced to provide testimony to a Congressional inquiry regarding rendition via video link! Details of Arar's attempts to bring suit in US courts can be found here at the Center for Constitutional Rights' (CCR) website.

Given such circumstances, it is appropriate that Lady Justice is blindfolded, so as to hide the tears that must be streaming down her face when such decisions are rendered. The issues in the Arar case are so stark because if the Law cannot protect a completely innocent man; if the Law can simply be abrogated by the powerful; if wrongs once perpetrated and brought to light cannot be fairly adjudicated and grievances redressed by the Law, then what is the point of having laws to begin with? We are as medieval serfs helpless in the face of the arbitrary power of kings. It was against such power that the US Constitution was in part crafted, but these so-called justices of the Second Circuit Court of Appeals make a mockery of the Constitution and have long forgotten the meaning of justice. Let's read them out, the roll-call of judicial shame on the Second Circuit; Dennis Jacobs (Chief Judge), Joseph McLaughlin, Jose Cabranes, Reena Raggi, Richard Wesley, Peter Hall, and Debra Livingston. Shame on all of you. These pathetic apologists for the National Security State comprised the seven judge majority that dismissed the Arar appeal. They should all turn in their robes in shame. I commend the four judges who penned dissenting opinions in the case; Guido Calabresi, Rosemary Pooler, Robert Sack, and Barrington Parker. At least there are some judges remaining who can see right from wrong through the legalistic mumbo-jumbo.

The seven judge majority essentially ruled that the US government can detain anyone under virtually any conditions, can transfer them abroad, even with the knowledge that they will likely be tortured, if it simply says that it is doing so for reasons of national security. It does not need to convince a judge that such statements are valid and have substance. It is simply enough for the government to assert that it is for reasons of national security. Having done so, the victim has no avenue for redress of grievances in US courts. None. This ruling grants to the executive branch and the President the same power of kings that the US Constitution was crafted to abolish! Agents of the government can act with virtually absolute power and absolute impunity. If that is not cause for concern, then I don't know what is. And these justices took an oath to uphold the Constitution? Have these so-called judges even read the Bill of Rights? Ironically, the majority argued that the separation of powers created in the Constitution did not allow them to intervene on the Executive's foreign policy powers in this case. But what of legality, the judiciary are supposed to uphold the law and provide a check on the executive. If not to protect innocents, then under what circumstances would the Court see fit to intercede?

Perhaps equally disturbing has been the Obama administrations stance on the so-called state secrets privilege. Recently, the Obama Justice Department has argued for exactly the same interpretation of the privilege as that favored by the Bush administration. It is hard to reach the conclusion that the Executive branch under Bush and now Obama is simply attempting to erect a permanent shield between itself and the law. Such actions are anathema to the rule of law and can only hasten the demise of already crumbling democratic institutions.

Torturing the Truth

Last week I attended a scientific meeting in Santa Fe, New Mexico. Such trips usually are an occasion to catch up on some reading on the flights. In this case it was also an opportunity to gorge myself on as much green chile as possible, having obtained a serious chile addiction when I lived there. I managed to get through the bulk of Jane Mayer's, "The Dark Side," an unflinching look at how the Bush administration betrayed America's commitment to decency and the rule of law, and in its place implemented a criminal policy of torture and abuse of terror suspects, or even innocents caught up in its unbounded "war on terror."

Mayer documents the suffocating paranoia around the Bush inner circle in the wake of the 9/11 attacks. In particular, there seemed to be a deeply held fear that subsequent attacks were imminent, and that these could somehow topple the Nation. Tinged with this fear for the Nation within the administration was also a dread that a substantial fraction of the blame would, rightly, fall on those in power, and thus derail their already sputtering agenda. This paranoia led the administration to construct its response largely as a military exercise, purposefully choosing not to solve the problem of terror in the context of law enforcement. This choice would eventually lead to disastrous consequences both for citizens at home and countless innocents in places as far reaching as Afghanistan and Iraq.

Out of this environment of fear those around Vice President Cheney saw an opportunity to finally reclaim executive power that had been relinquished in the aftermath of the disastrous war in Vietnam and the abuses of the Nixon administration. Indeed, Cheney and those around him sought to establish the "unitary executive," essentially the notion that the President is a law unto himself. While Mayer describes no end of illegal and unethical behavior within the administration, several disturbing themes become apparent. These include;

1) Absolute contempt for the law. Time and again when faced with possible legal impediments to their desired goals administration apparatchiks simply disregarded the law, or worse, presumed the power to interpret or re-write laws as they saw fit. The leading example of this was the "overthrow" of the Justice Department's Office of Legal Counsel (OLC) by a small handful of administration lawyers--including the now infamous John Yoo and Jay Bybee-- who would essentially presume the power to write legislation. Time and again the administration would cut-off debate or dissent by simply having its OLC junta craft an appropriate memo (edict might be a more accurate term), many of which would essentially argue that 2+2=5, the famous "torture memo" being the most well-known example. This use of an ostensibly independent agency (the Justice Department) as a de-facto internal legislative body effectively short-circuited the Constitution. As such, these machinations represented gross violations of the President's duties and oath to defend the Constitution and by themselves would constitute impeachable offenses, or worse.

2) Absolute contempt for the democratic process. It was remarkable the extent to which political appointees in relatively low-level positions were essentially making and implementing national policy, often in areas for which their positions had no official portfolio. The most egregious example of this behavior was within the Vice President's office, where David Addington, Cheney's legal counsel, wielded enormous influence on national security issues, an area in which he had no formal portfolio. Indeed, more than once had Addington driven other administration members to fits of rage by usurping their positions in the national security hierarchy. In particular, Addington, because of his closeness to Cheney, was able to influence policy surrounding detainee interrogation and disposition to an almost unbelievable extent. This became possible also because Cheney would apparently always have the last word with President Bush, essentially getting him to agree to anything the Vice President desired. While American democracy can only truly function within a partnership of the different branches of government, this notion of partnership was anathema to the Bushites. They sought to and did exclude any and all, in any branch of the government, who might be perceived as cool to their radical ideas. Often this was done with deception and dishonesty, or, more commonly, through intimidation and threats. So much for whistle-blower legal protections, oh, that's right, see 1) above.

3) An absolute commitment to secrecy and the impunity that it enables. The Bush administration expanded exponentially the use of the secret classification, and attempted to hide from public view almost anything that it perceived as controversial, which, as it turned it was most of their "war on terror" programs. Indeed, it can be argued that the Bush administration lowered the "state secret" defense to new levels of abuse. It becoming necessary to declare anything and everything a state secret that might reflect badly on the administration. Deeply troubling was the desire by some in the administration to empower secret special forces with the "authorization" to kill whomever was deemed necessary to eliminate, no matter where they may be. Sounds a lot like a "death squad" to my ears. Such secrecy and indeed, a devotion to it, are incompatible with a functioning democracy. It remains troubling that even under President Obama the Justice Department appears intent on defending much of the Bush administration's arguments concerning so-called state secrets. This is even more disconcerting in that it is now pretty clear that much of this secrecy was enacted to shield illegal conduct from public scrutiny.

4) Honorable Americans tried to do the right thing at almost every turn. One of the hopeful themes from "Dark Side" is that in most of the situations described, one or several agents within the government were committed to working within the framework of the law, and attempted to prevent the implementation of disastrous and illegal policies. A sobering realization, and which has crucial implications for future accountability, is how, invariably, they were unable to stop the Bush train. Indeed, a number of FBI agents were appalled by the nature of "enhanced" interrogation policies being implemented by the CIA. In several cases FBI agents had first begun interrogations of suspects using smart and legal methods of interrogation, and with much initial success, only for the CIA to subsequently be granted custody, and for the "gloves to come off." An invariable outcome of this was that the detainees would actually be less responsive with information. Also, with such tactics, it becomes impossible to gain information over the long term, and moreover, it becomes almost impossible for such coerced evidence to be used at trial.

Meanwhile, it's been remarkable to watch the recent torture "debate" in the corporate media. On the one hand it's rather astonishing to see the extent to which so-called mainstream outlets are willing to give former administration officials, most notably Cheney, a pulpit from which to proclaim the efficacy of "enhanced" techniques. On the other hand, one would have to search far and wide for even a brief discussion of the actual law and facts surrounding torture, which is actually quite clear and easily understood. I would argue that several factors contribute to this willingness. First, the conservative, right-wing, reactionary viewpoint of Cheney and his ilk is well represented in the corporate world of big media. For this fascist crowd the law is just a self-serving tool. Laws are for the other guy, we'll just do whatever we perceive to be in our interests, emphasis on the "our." Another angle is that corporate media loves a confrontation. The torture good or bad debate fits nicely into this framework. "Conservative" viewpoints, by definition one of the acceptable opinions, are always given a hearing, no matter how extreme, to perhaps be countered by the "liberal" viewpoint. No matter the laws broken, or the long-term, extensive damage done to American security and America's standing in the world, those who authored the torture policies and should, rightly, be facing prosecutions, can be paraded as patriots on America's corporate airwaves.

It is in such an environment that the new administration, and Democrats in general appear remarkably weak and unwilling to directly confront and oppose the question of "enhanced" interrogations. Democrats are unable, or perhaps simply unwilling, to articulate the fact based narrative of how Republican policies around the war on terror have left America much less secure. This is evidenced in Obama's willingness to adopt much of the Bush administrations framing of the global war on terror. Obama talks a good game, but when we look at the policy choices that have been made with regard to detainee treatment and the so-called war on terror in general, the pace of any change has been either depressingly slow or simply non-existent. Particularly troubling is the Obama administration's apparent unwillingness to seek investigations and prosecutions of former Bush administration officials for engineering a torture policy in clear violation of American and International law. If the rule of law means anything, then Obama needs to support a criminal investigation. If he does not, then those so inclined will draw the obvious conclusion, that they too can break the law as they see fit. It is indeed ironic that after a century of American leadership on human rights we may now have to wait for universal jurisdiction proceedings in a Spanish court to see some accountability for America's torturers.

Supreme Ideologues

With another 5 - 4 decision the Supreme Court has recently upheld basic provisions of the Constitution while simultaneously sending a stinging rebuke to the Bush administration's "enemy combatant" detainee policy. The Court was reviewing a challenge to the Military Commissions Act which had stripped habeus corpus rights from detainees in the wake of the Court's previous decision on detainee policies in Hamdan vs Rumsfeld. This was the third ruling over a six year span in which the Court has made clear that the administration's manufactured legal "system" surrounding detentions at the Guantanamo Bay gulag is un-Constitutional (read illegal). However, after each previous rebuke the Administration was able to work with it's Republican allies in Congress to pass legislation defying the Court's decision. Shamefully, the infamous Military Commissions Act that this most recent decision strikes down was passed with significant Democratic support as well.

Justice Kennedy, who has recently become the "centrist" swing vote on the Court, joined with the more liberal Justices; Ginsburg, Souter, Stevens and Breyer in arguing that, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” and asserting that the Court is the final arbiter of what the law is, not a self-styled unitary executive commander in chief. In many ways this decision was rather straightforward. The most relevant section of the Constitution, the so-called "Suspension Clause" (Article 1, Section 9, Clause 2), states, "The Privilege of the Writ of habeas corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The great writ is a cornerstone of English law, and came about as a response to the arbitrary power of English kings to exert the right to hold anyone for as long as they liked without ever having to explain to anyone why. Indeed, the drafters of the Constitution, having recently experienced the excessive and unjust powers of a king, in this case George III, felt strongly enough to enshrine the right to habeas corpus directly into the wording of the document. The clause is quite clear, the only exigencies that might abrogate it being invasion or rebellion, neither of which situation exists today by any reasonable interpretation of those words.

One might then reasonably ask how the Court could be so divided on this apparently basic issue? It essentially comes down to the idea that one either believes in the rule of law, or the rule of men. The four Justice minority in this case; Roberts, Alito, Scalia and Thomas, have left no doubt where they stand on this notion. They have consistently supported the "theory" that Mr. Bush as commander in chief is essentially the law, and can do as he pleases. They voted as a block in all the previous detainee cases, except for the Hamdan case for which Roberts had to recuse himself, since he had previously ruled against the habeas petition while sitting on the US Court of Appeals for the DC circuit. So, there can be little doubt what his decision would have been had he participated. This gang of four has consistently shown where their loyalties lie, not with the Constitution, but with a political party and it's extreme rightwing, neofascist ideology that is in thrall to power, whether it be executive, governmental (as in their own power on the Court), or the private power of corporations.

In his dissenting opinion, Chief Justice Roberts claimed that the Bush administration's detainee policy represented, “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” That these ostensible "protections" violate the supreme law of the land apparently carries no weight with Roberts. Moreover, the "procedures" put in place by the administration allow Bush to, by fiat, declare anyone an "enemy combatant" without a meaningful, independent judicial review. This is hardly the due process envisioned by the drafters of the Constitution when they added the Suspension Clause. And to think that we must suffer this Chief Justice for perhaps decades to come. While in his confirmation hearings Roberts pledged reasonableness and objectivity, his decisions on the Court since then suggests the exact opposite.

Of the other dissenting opinions that of Antonin Scalia was, not surprisingly, the most outrageous. Scalia argued that the decision, “warps our Constitution” and, went as far as to suggest that it will place American lives at risk, “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed,” he argued. Of course, the only thing warped and twisted here is Scalia's logic. That a decision which restores an important right guaranteed by the Constitution represents a "warping" of it strains credulity. And isn't it ironic that Scalia, who helped halt the 2000 Florida recount that ensconced Bush in the White House, should then argue that this decision will cost more American lives, when his 2000 decision helped to set in motion the disastrous Bush presidency, that has cost many thousands of American soldiers their lives, not to mention hundreds of thousands of Iraqis. We can be thankful that there are still at least five Justices with some commitment to the Constitution and the rule of law, and it should be absolutely clear that the country can no longer tolerate the appointment of political idealogues to the Court. The stakes are far too high for that.